RE: Poor analogy (was RE: DMCA alternatives (RE: Clarification (RE: "Fair Use" IsGetting Unfair Treatment))

["Rick Anderson" <rickand@unr.edu>]

Matt says:

> it seems to me that using a breaking into a house analogy to inform
> discussion about bypassing copy protection is not even an apples/oranges
> comparison.  Homes and copyright are different enough that comparisons
> involving them are of limited use--at least for me.

I say:

But the comparison isn't between homes and copyright -- the comparison is
between homes and databases, and between copyright law and property law.
If the law allows me to lock my front door and punishes those who pick the
lock (regardless of their ultimate intent), why can't the law protect my
proprietary database from those who would hack it?


> If the purpose of the back and forth between Anderson and Hamaker
> is to make Hamaker tighten his arguments for preserving the fair use
> provisions by getting rid of the DMCA, then fine.  I am all for the
> often necessary role of the devil's advocate.

My purpose, anyway, is to arrive at a rational solution to a vexing
problem. The most rational solution may not be the one that makes
librarians feel warm and fuzzy inside.  I don't that the DMCA is the best
solution, but so far most of the objections I've heard have been more
emotionally stimulating than logically convincing.

> If you really want to stick with the real estate analogies, we
> shouldn't criminally prosecute people who climb a fence if they have a
> right to walk a path.

This is a worse analogy, I think -- if the path is public, then the fence
(unlike the lock on my house and the security measures on my database)
should not be there.  If the path is private, then climbing the fence
_should_ be illegal.  Unless you're arguing that the whole idea of
proprietary information is bad, in which case we're working from a
completely different set of assumptions.


-------------
Rick Anderson
Director of Resource Acquisition
The University Libraries
University of Nevada, Reno      "That wasn't a Freudian slip;
1664 No. Virginia St.              it was a Jungian slip."
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rickand@unr.edu